96 P.3d 590 (Hawai'i App. 2004), 24440, State v. Kuhia

Docket Nº:24440.
Citation:96 P.3d 590, 105 Hawai'i 261
Opinion Judge:[11] The opinion of the court was delivered by: Nakamura, J.
Party Name:STATE of Hawai'i, Plaintiff-Appellee, v. Glenn Kealoha KUHIA, Defendant-Appellant.
Attorney:[7] On the briefs: [8] Mangmang Qui Brown, Deputy Prosecuting Attorney City and County of Honolulu for plaintiff-appellant. [9] Pamela E. Tamashiro, Esq. for defendant-appellee.
Case Date:July 29, 2004
Court:Court of Appeals of Hawai'i, Intermediate
 
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Page 590

96 P.3d 590 (Hawai'i App. 2004)

105 Hawai'i 261

STATE of Hawai'i, Plaintiff-Appellee,

v.

Glenn Kealoha KUHIA, Defendant-Appellant.

No. 24440.

Intermediate Court of Appeals of Hawai'i.

July 29, 2004

As Amended Aug. 2, 2004.

Page 591

[Copyrighted Material Omitted]

Page 592

[105 Hawai'i 263] Mangmang Qiu Brown, Deputy Prosecuting Attorney, City and County of Honolulu, for plaintiff-appellee.

Pamela E. Tamashiro, Esq., Honolulu, for defendant-appellant.

BURNS, C.J., FOLEY and NAKAMURA, JJ.

OPINION

NAKAMURA, J.

Defendant-Appellant Glenn Kealoha Kuhia (Kuhia) was convicted by jury of two counts of making a terroristic threat against a public servant, in violation of Hawaii Revised Statutes (HRS) § 707-716(1)(c) (1993). 1 Kuhia's convictions were based on separate incidents in which he threatened to kill individuals employed or hired on a contract basis by the State of Hawai'i. He was sentenced on each count to concurrent terms of five years probation.

Kuhia appeals from the July 16, 2001 Judgment entered by the Circuit Court of the First Circuit. On appeal, Kuhia argues that the trial court should have sua sponte instructed the jury on the definition of "public servant" found in HRS § 710-1000(15) (1993). 2 Kuhia interprets this definition as limiting the application of HRS § 707-716(1)(c) to terroristic threats made against a public servant who, at the time the threat was made, was actively performing a governmental function and acting within the scope of his or her employment. He challenges the constitutionality of HRS § 707-716(1)(c) on vagueness grounds if his restrictive definition of "public servant" is not adopted. In addition, Kuhia argues that the trial court erred in failing to instruct the jury that a "true threat" was required. We reject Kuhia's arguments and affirm the circuit court's Judgment.

I. BACKGROUND AND PROCEDURAL HISTORY

Kuhia began actively pursing his Hawaiian genealogy after he learned about a quiet title action permitting the heirs of Mahu to claim an interest in land on Maui. In order to prove his right to intervene in that action, Kuhia embarked on a diligent search to document and prove his Hawaiian roots. Based on his research, Kuhia believed that he was not only an heir of Mahu, but also an heir of Queen Lili'uokalani. For reasons that are not clear, Kuhia's search for his genealogy also led him to believe that his father, whose death in 1960 had been classified as a suicide, had in fact been murdered.

Kuhia's efforts to prove his Hawaiian genealogy and to assert his rights as a Native Hawaiian brought him into contact with State agencies established to assist Native Hawaiians, including the Office of Hawaiian Affairs [105 Hawai'i 264]

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(OHA) and the Hawaiian Homes Commission (HHC). It was Kuhia's confrontations with persons employed by or working under contract for these agencies that led to the charges in this case.

A. Threats Against Colin Kippen, Jr.

In 1999, Colin Kippen, Jr. (Kippen) was OHA's Deputy Administrator. His responsibilities included administering the office and implementing the policies of the board of trustees. Kippen began working for OHA in late 1997.

OHA funds the Native Hawaiian Legal Corporation (NHLC) to provide legal services to qualifying Native Hawaiians. In 1997, Kuhia asked the NHLC to represent him in a quiet title action involving land on Maui so that he could assert a claim as an heir of Mahu. In support of his request for representation, Kuhia produced records he believed showed that he was an heir of Mahu. The NHLC, however, denied Kuhia's request for representation because its research indicated that Kuhia was descended from a family named Lee, and that he was not an heir of Mahu. After the denial of representation by the NHLC, Kuhia immersed himself in research to prove his Hawaiian genealogy and to show that records relied upon by the NHLC were incorrect.

Kuhia later turned to OHA. Kuhia wanted Kippen, on behalf of OHA, to direct the NHLC to represent Kuhia in the quiet title action. Kippen contacted the NHLC and received back a letter explaining that the NHLC could not accept Kuhia as a client or file a claim on his behalf because it did not have a good faith belief that he was an heir of Mahu. On February 1, 1999, Kippen prepared a letter advising Kuhia that OHA could not force the NHLC to take Kuhia as a client in breach of NHLC's ethical duties.

On February 2, 1999, Kuhia went to OHA's offices. Kuhia became very angry after reading Kippen's letter, and threw the letter back at Kippen. Kuhia demanded that Kippen return original genealogical documents that Kuhia claimed to have given to OHA staff on previous occasions. Kippen knew it was OHA's policy to make a copy of any original document submitted and to return the original. He also checked with OHA staff members, who all stated that any original documents submitted by Kuhia had been copied and returned to him.

Kuhia was "very upset" and "very angry" when Kippen did not satisfy Kuhia's demand for the original documents. Kuhia yelled, swore, and directed racial epithets at an OHA staff member. Kippen walked away because he could not satisfy Kuhia's demand, and Kuhia called the police. The officers arrived and tried to convince Kuhia that the dispute over the records was a civil matter. However, when Kuhia refused to leave without the records, the police arrested Kuhia for trespassing. After the February 2, 1999 incident, OHA obtained a restraining order against Kuhia. 3

Kuhia's ongoing quarrel with Kippen, OHA, and the NHLC provided the backdrop for the terroristic threats Kuhia was charged with making against Kippen. At trial, Kippen testified that on March 17, 1999, he was on his way to testify before the Legislature in his capacity as the Deputy Administrator for OHA. Kippen was walking through the 'Iolani Palace grounds and had just passed the Archives Building when he saw Kuhia about 20 yards away.

As soon as Kippen made eye contact, Kuhia quickened his pace. When Kuhia got within five yards of Kippen, Kuhia took off his shirt. Kuhia inflated his chest, clenched his fists, held them up, and came at Kippen. Kuhia told Kippen that he was going to kill Kippen and the Governor because they killed his father.

In response, Kippen backed away. He told Kuhia, "[Y]ou can't talk to me. You cannot be doing this." Kippen attempted to deter Kuhia by referring to Kuhia's arrest at OHA's offices a month earlier. Kuhia, however, would not stop. Kippen testified:

He [Kuhia] kept coming at me. He kept threatening me. He called me a fucking

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[105 Hawai'i 265] haole 4 at that point. He continued to threaten me. He threatened my family that he was going to kill them, and he just kept coming, so I retreated.

Kippen turned around and sought sanctuary inside the Archives Building. He asked a member of the Archives staff to call "911" because "[s]omebody just threatened my life."

Kuhia pursued Kippen but stopped at the glass doors to the Archives Building. He maintained eye contact with Kippen and eventually sat on a wall about 40 yards away. Kuhia remained there, glaring at Kippen, until the police arrived. Kippen pointed out Kuhia to the police, and Kuhia was arrested.

B. Threats Against Allen Hoe

In October of 1998, Allen Hoe (Hoe), an attorney in private practice, was working on a contract basis as a contested hearings officer for the HHC. Hoe was hired to conduct hearings in disputes between the Department of Hawaiian Home Lands (DHHL) and its Native Hawaiian beneficiaries, and to assist in resolving those disputes.

Hoe testified at trial that on the morning of October 14, 1998, he was crossing Punchbowl Street after representing a private client at a labor hearing. He noticed Kuhia on the other side of the street. Kuhia caught Hoe's attention because Kuhia was wearing a pith helmet and a trench coat. Kuhia pointed at Hoe and screamed, "You Allen Hoe, aren't you?" Hoe did not recognize Kuhia and responded, "Yeah, do I know you?" Kuhia told Hoe, "I'm going to kill you, you fuckah." Hoe replied that he did not know Kuhia and questioned why Kuhia was going to kill him. Kuhia repeated, "I'm going to kill you, you fuckah."

While threatening to kill Hoe, Kuhia was screaming at the top of his voice, exhibited early signs of rage, and was very animated. During their encounter, which lasted three to five minutes, Kuhia repeated his threats to kill Hoe several times. Kuhia also accused Hoe of murdering Kuhia's father, and threatened to kill Hoe's family. Kuhia told Hoe, "[J]ust because you used to be one District Court Judge not going to save you, and you can call the cops, I'm going to kill them too after I take care of your family." Hoe testified that Kuhia's threats made him very apprehensive and "kind of rocked me back." Kuhia told Hoe to talk to John Hirota, an employee of the DHHL, if Hoe had any questions about who "Kealoha Kuhia" was.

While threatening Hoe, Kuhia got to within inches of Hoe's face, but did not strike Hoe. Hoe tried on several occasions to walk around Kuhia and leave, but Kuhia kept positioning himself to block Hoe's path. Finally, Hoe told Kuhia that he was leaving, and said, "[Y]ou know what, Bruddah, you do what you got to do." As Hoe walked away from Kuhia, Hoe "clearly expected" to be hit from behind by Kuhia.

Later that day, Hoe talked to John Hirota, the DHHL's Homestead District Operations Manager. Hirota helped coordinate the contested case hearings for the DHHL over which Hoe presided. Hoe asked Hirota if he knew a person named Kealoha Kuhia. Hirota said that he knew a person named Glenn Kuhia, and provided a description which matched the man who had threatened Hoe. Hoe asked...

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